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Social media do's and don’ts for litigators

In recent years, waves of technological transformation have washed over our economy, wiping out entire industries and changing our business landscape forever. Darwinian forces in this new marketplace have extinguished conventional brick-and-mortar retail businesses like Blockbuster and Tower Records, while new companies, more fit to survive in this digital era like Netflix and Spotify, have sprung to life.

In this sea of change, the legal profession is no island. Attorneys must also adapt to technological innovation to survive in a highly competitive environment. Litigators, in particular, should search for ways to leverage technology to more effectively prepare and present their cases for trial. Among all forms of technology, social media may present the most interesting opportunities and challenges for legal practitioners. In its relatively short life span, social media has proven to be a pervasive and disruptive force, which attorneys ignore at their own peril. The mishandling of social media has resulted in sanctions, public reprimands, privilege waivers, and the remittitur of damages. On the other hand, many lawyers have made good use of social media to obtain key discovery and effectively market their legal practice. In the modern practice of law, attorneys must maximize the opportunities that social media affords while simultaneously minimizing its risks.

Based on the case law that is emerging concerning social media, there are several key “do’s” and “don’ts” that every attorney should know:

DO instruct your clients to preserve discoverable social media information

DO not forget to instruct your clients to refrain from discussing ongoing litigation on social media

DO remember to conduct inspections of the social media profiles of opposing counsel and parties

DO NOT serve the providers of social media platforms with civil discovery

DO NOT “fake friend” opposing parties or witnesses

DO research the social media footprint of potential and actual jurors

DO NOT fail to properly authenticate social media information for use at trial